Parties
Date:
Parties:
1. Centegra Ltd, a company incorporated in [England and Wales] (registration number 04578722, having its registered office at The Weston Centre, Weston Road, Crewe, Cheshire, CW1 6FL (the "Provider"); and
2. XXXXXXXX , a company incorporated in [England and Wales] having its registered office at, xxxxxx. Registration Number xxxxxx (the "Customer").
1. Definitions
Except to the extent expressly provided otherwise, in this Agreement:
"Account" means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of [09:00 to 17:00 GMT/BST] on a Business Day;
"Charges" means the following amounts:
(a) the amounts specified in Schedule 1 - Hosted Services particulars;
(b) such amounts as may be agreed in writing by the parties from time to time; and
(c) amounts calculated by multiplying the Provider's standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider's personnel performing the Support Services.
"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) the Customer Data;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including [failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars]);
“Hardware Equipment” means equipment physically supplied by the Provider to the Customer and includes, but is not limited to, POS terminals, cash drawers, printers and other peripherals.
"Hosted Services" means www.centegraplus.com / www.mystore.ncrsilver.co.uk as specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Schedule 1 Hosted Services particulars and in the Documentation;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Permitted Purpose" means use of the Platform by the Customer for its correct purpose;
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software.
2. Term
2.1. This Agreement shall come into force upon the Effective Date.
2.2. This Agreement shall continue in force for 24 months from the date of signing. If the customer is purchasing SaaS with hardware equipment from the Provider via separate rental agreement or payable upon invoice, this Agreement will commence upon the installation date of hardware equipment. After the initial term has ended, unless the Provider is informed in writing, the contract will automatically renew for a further 12-month period on a rolling basis, subject to termination in accordance with Clause 14.
3. Hosted Services
3.1. The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account on or promptly following the Effective Date.
3.2. The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
3.3. The license granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer;
3.4. Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 3.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services; and
(e) the Customer must not make any alteration to the Platform
3.5. The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.
3.6. The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
3.7. For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
3.8. The Customer must comply with Schedule 2 - Acceptable Use Policy, and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with Schedule 2 - Acceptable Use Policy.
3.9. The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
3.10. The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.11. For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
3.12. The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4. Maintenance Services
4.1. The Provider shall provide the Maintenance Services to the Customer during the Term.
4.2. The Provider shall where practicable give to the prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services for more than one hour outside of the hours 2am-6am, without prejudice to the Provider's other notice obligations under this main body of this Agreement.
4.3. The Provider may upgrade the platform as and when new features and functionality (but not limited to these) are available. No notice will be given for this.
4.4. The Provider shall provide the Maintenance Services with reasonable skill and care.
4.5. The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
5. Support Services
5.1. The Provider shall provide the Support Services to the Customer during the Term.
5.2. The Provider shall make available to the Customer a helpdesk during the terms of agreement. This helpdesk will be available for all queries during office hours (Mon-Friday 9am-5pm GMT/BST) and for emergency support, which affect critical operations of the customer outside of these hours.
5.3. The Provider shall provide the Support Services with reasonable skill and care.
5.4. The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
5.5. The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
5.6. The Provider agrees to provide the Customer with Software Support in consideration of payment by the Customer to Provider as described on the Software Support Schedule as follows:
(a) Software Support will be available via a telephone ‘Helpdesk’ and email from 9:00am to 5:00pm Monday to Friday excluding public holidays. Outside of these hours, emergency support is available for a Priority One issue that seriously affects the Customers ability to trade.
(b) Each incident must be reported to Provider promptly and accurately by the Customer in the manner required by Provider following which Provider will issue an incident reference number to the Customer;
(c) Provider will use reasonable endeavours to make an initial response to the Customer by telephone within 1 hour of the incident being reported;
(d) Provider will use reasonable endeavours to resolve a Priority One Issue (defined in clause 5.7) within 24 hours and a Priority Two Issue (defined in clause 5.8) within 72 hours of the initial report of the incident;
(e) Provider will endeavour to resolve a Priority Three Issue (defined in clause 5.9) within 10 working days or as soon as is possible bearing in mind the specific nature of the request;
(f) Provider may use remote telecommunication access or site visits to resolve the incident at Providers own discretion with the agreement of the Customer;
(g) Where an incident has not been satisfactorily resolved within the target resolution timescales described in (d) or (e) above the Customer may escalate the matter to a Director of Provider;
(h) Where an incident has not been satisfactorily resolved within 72 hours after escalation to a Director of Provider the Customer may further escalate the matter to the Managing Director of Provider;
5.7. In the context of Software Support the expression “Priority One Issue” shall mean the following:
(a) Complete system failure;
(b) Failure of a substantial part of the system that seriously disrupts the business of Customer and where there is no practical workaround;
(c) Significant degradation in overall system performance that severely affects normal usage.
5.8. In the context of Software Support the expression “Priority Two Issue” shall mean the following:
(a) Failure of a minor part of the system that does not seriously affect usage and does not cause serious disruption to the business of the Customer;
(b) Minor degradation in overall system performance that does not affect normal usage.
5.9. In the context of Software Support the expression “Priority Three Issue” shall mean the following:
(a) Any problem for which there is a practical workaround;
(b) Issues that are merely an inconvenience;
(c) Requests for advice or software changes or any other matter – timescales to be agreed with customer.
5.10. The degree of priority and amount of Provider resources and method of provision of Software Support for each incident shall be determined by Provider after consultation with the Customer.
5.11. The Customer shall at their own expense provide such facilities as are reasonably required by Provider to allow remote telecommunication access to computer systems running Provider software to provide Software Support.
5.12. Both parties agree to provide the other and at their own expense with information and staff co-operation reasonably required for Provider to provide Software Support.
5.13. Software Support entitles the Customer to new releases of Provider Software described on the Software Support Schedule free of any licence charge.
5.14. Customers solution may include Software not part of the Hosted Services that may be installed on, but not limited to, devices located on customer premises and in such cases requires installation by the Customer. Provider reserves the right to charge a reasonable fee and the costs of travel and accommodation and subsistence expenses where the Customer requires Provider to install an update or new release of Provider Software which is designed to be installed by the Customer.
5.15. Provider will provide Software Support for the current and last release of Provider Software issued to the Customer.
5.16. Except as expressly specified Provider will not provide direct support or maintenance or upgrades or any warranty for Third Party Products.
5.17. Provider reserves the right to charge a reasonable fee to resolve failures or any other problems resulting from the misuse of Provider Software by the Customer or the failure by the Customer to use Provider Software as described by Provider or the failure by the Customer to carry out system management and housekeeping routines described by Provider.
5.18. The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
6. Customer Data
6.1. The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.
6.2. The Customer warrants to the Provider that the Customer will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation in any jurisdiction and under any applicable law.
7. No assignment of Intellectual Property Rights
7.1. Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
8. Charges
8.1. The Customer shall pay the Charges to the Provider in accordance with this Agreement.
8.2. If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 8.2.
8.3. All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable taxes, including but not limited to; value added tax, sales tax, import duties, which will be added to those amounts and payable by the Customer to the Provider.
8.4. The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.
9. Payments
9.1. The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate.
9.2. The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice, providing that the Charges must in all cases be paid before the commencement of the period to which they relate.
9.3. The Customer must pay the Charges by direct debit (using such payment details as are notified by the Provider to the Customer from time to time).
9.4. If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each named calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
10. Provider's confidentiality obligations
10.1. The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent[, and then only under conditions of confidentiality approved in writing by the Customer;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.
10.2. Notwithstanding Clause 10.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
10.3. This Clause 10 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
10.4. The restrictions in this Clause 10 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
10.5. The provisions of this Clause 10 shall continue in force for a period of 2 years following the termination of this Agreement, at the end of which period they will cease to have effect.
10.6. On termination of this Agreement, Provider shall:
(a) return Customer Confidential Information;
(b) erase all residual Customer Confidential Information from its computer systems (to the extent possible).
11. Data protection
11.1. The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).
11.2. To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of that Personal Data;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of that Personal Data and against loss or corruption of that Personal Data; and
(c) it will not transfer or permit the transfer of that Personal Data outside the EEA without the prior written consent of the Customer.
11.3. Both Parties shall comply with the Data Protection Legislation (including GDPR). In respect of the Personal Data, the Customer agrees to comply with (or ensure compliance with) the obligations placed on controllers under the Data Protection Legislation and the Provider agrees to comply with the obligations placed on processors under the Data Protection Legislation. In respect of the Personal Data, Provider will:
(a) maintain technical and organisational measures sufficient to protect the Personal Data, as required by Article 32, GDPR;
(b) only process the Personal Data for and on behalf of the Customer, in accordance with the written instructions of the Customer for the purposes of this Agreement and to ensure compliance with the DPA / GDPR;
(c) not transfer the Personal Data to, or process it in, a non-adequate country unless Provider receives Customer’s prior written consent and Provider ensures that such transfer and/or processing complies with the requirements of the DPA/GDPR relating to international transfers. A “non-adequate country” means any country other than the United Kingdom, countries that are in the European Economic Area and countries that have received an adequacy decision on the basis of Article 45, GDPR;
(d) not sub-contract its processing of the Personal Data to another processor or permit any other person to process the Personal Data, without the prior written consent of Customer. Any such consent shall be conditional on Provider imposing obligations on such person that are in all material respects the same as the obligations imposed on Provider under this Clause 11;
(e) taking into account the nature of the processing, assist Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Customer's obligation to respond to requests for exercising the data subject's rights laid down in Chapter III, GDPR; assist Customer in ensuring compliance with the Customer’s obligations pursuant to Articles 32 to 36, GDPR taking into account the nature of processing and the information available to the processor;
(f) at the choice of Customer, delete or return the Personal Data after the end of the provision of the relevant Services, and delete any copies of the Personal Data unless required to store such data by applicable law;
(g) maintain and make available to Customer all information necessary to demonstrate compliance with the obligations laid down in this Clause 11 allow the Customer to audit the Provider’s compliance with the requirements of this Clause 11 upon reasonable notice.
11.4. The Customer and Provider will work together to separately document the particulars of Supplier’s processing of the Personal Data as required under Article 28(3) of the GDPR, the nature and purpose of the processing, the type of Personal Data and categories of data subjects. The duration of such processing is the Term, and the subject matter is the performance and receipt of the services.
11.5. Both Parties agree to use all reasonable efforts to assist each other to comply with the DPA / GDPR.
11.6. Compliance with this Clause 11will be provided by the Provider at no extra cost to the Customer.
11.7. Terms and expressions used in this Clause 11 shall be interpreted in accordance with the GDPR. References to Articles and Chapters of the GDPR shall be interpreted to include analogous provisions of other Data Protection Legislation.
12. Warranties
12.1. The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
12.2. The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(b) the Hosted Services will be free from Hosted Services Defects;
(c) the application of Updates and Upgrades to the Platform by the Provider will be applied on a regular basis. The Provider will not knowingly introduce any Hosted Services Defects into the Hosted Services;
(d) the Platform will incorporate security features reflecting the requirements of good industry practice.
12.3. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
12.4. The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
12.5. The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
12.6. All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
13. Acknowledgements and warranty limitations
13.1. The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
13.2. The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
13.3. The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
13.4. The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
14. Limitations and exclusions of liability
14.1. Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
14.2. The limitations and exclusions of liability set out in this Clause 14 and elsewhere in this Agreement:
(a) are subject to Clause 14.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
14.3. The Provider shall not be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
14.4. The Provider shall not be liable to the Customer in respect of any loss of profits or anticipated savings.
14.5. The Provider shall not be liable to the Customer in respect of any loss of revenue or income.
14.6. The Provider shall not be liable to the Customer in respect of any loss of use or production.
14.7. The Provider shall not be liable to the Customer in respect of any loss of business, contracts or opportunities.
14.8. The Provider shall not be liable to the Customer in respect of any loss or corruption of any data, database or software
14.9. The Provider shall not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
14.10. The liability of the Provider to the Customer under this Agreement in respect of any event or series of related events shall not exceed the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.
15. Force Majeure Event
15.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
15.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
15.3. A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
16. Termination
16.1. Either party may terminate this Agreement by giving to the other party at least 90 days written notice of termination after the initial period has expired.
16.2. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
16.3. Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up[ (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement)]; or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
17. Effects of termination
17.1. Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect in accordance with their express terms or otherwise indefinitely: Clauses 1, 3.11, 7, 10, 11,12, 14, 17, 20, and 21.
17.2. Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
17.3. Within 30 days following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the parties' other legal rights.
18. Notices
18.1. Any notice from one party to the other party under this Agreement must be given by one of the following methods;
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,
(c) by email once a confirmation of receipt from The Provider or customer has been received.
(d) via electronic contract signature service (e-sign)
18.2. providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
18.3. The addressee and contact details set out in Parties. may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 18.
19. Subcontracting
19.1. The Provider may subcontract any of its obligations under this Agreement.
19.2. The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
19.3. Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third-party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
20. General
20.1. No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
20.2. If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
20.3. This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
20.4. Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
20.5. This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
20.6. Subject to Clause 14.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
20.7. This Agreement shall be governed by and construed in accordance with English law.
20.8. The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
21. Interpretation
21.1. In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
21.2. The Clause headings do not affect the interpretation of this Agreement.
21.3. In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
SCHEDULE 1 Acceptable Use Policy
1. Introduction
1.1. 1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of [the website at www.centegraplus.com, any successor website, and the services available on that website or any successor website] (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2. References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to [identify provider] (and "we" and "our" should be construed accordingly).
1.3. By using the Services, you agree to the rules set out in this Policy.
1.4. We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5. You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.
2. General usage rules
2.1. You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2. You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3. You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1. Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2. Content, and the use of Content by us in any manner licensed or otherwise authorised by you, must not:
(a) be libelous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3. You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Factual accuracy
4.1. Content must not be untrue, false, inaccurate or misleading.
5. Negligent advice
5.1. Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
5.2. Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
6. Etiquette
6.1. Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
6.2. Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
6.3. Content must not be liable to cause annoyance, inconvenience or needless anxiety.
6.4. You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
6.5. You must not use the Services for the purpose of deliberately upsetting or offending others.
6.6. You must at all times be courteous and polite to other users of the Services.
7. Monitoring
7.1. 8.1 You acknowledge that we may actively monitor the Content and the use of the Services.
8. Data mining
8.1. You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
9. Hyperlinks
9.1. You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
10. Harmful software
10.1. The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
10.2. The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.
